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Police had reasonable suspicion to do a protective sweep of car for weapons; officer’s trial testimony didn’t vouch for another witness

State v. Terrance L. Ware, 2014AP378-CR, District 1, 12/30/14 (not recommended for publication); case activity

The totality of the circumstances surrounding the investigative stop of Ware’s car gave the police reasonable suspicion that Ware or his passenger was dangerous and might have access to a weapon hidden in the car, justifying a protective search of the car for weapons. In addition, a police officer wasn’t vouching for another state’s witness by saying the witness “told the truth” after additional questioning.

Police stopped Ware’s car in a high crime area based on evasive and reckless driving (viz., excessive speed, a turn from the wrong lane, disregard of a traffic sign, failure to signal a turn) and the lack of a front license plate. After police activated their lights and sirens, Ware slowed down but did not pull over right away, and while the car was traveling slowly for half a block officers saw the front seat passenger lean forward in a way that looked like he was hiding or retrieving a weapon. The officers had Ware and his passenger (Ware’s brother Marques) get out of the car, did a pat-down on both men, and asked them to step to the back of the car. Marques complied, but Ware had to be physically directed to the back of the car. The police then did a protective search of the car and found a semi-automatic handgun in the glove compartment. (¶3).

Police are allowed to do a protective search of a car “when an officer reasonably suspects that the person ‘is dangerous and … may gain immediate control of weapons’ placed or hidden in the passenger compartment.” State v. Johnson, 2007 WI 32, ¶24, 299 Wis. 2d 675, 729 N.W.2d 182 (quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983). Ware disputed that the police could have seen his brother leaning forward, but the trial court found the officer’s testimony to be credible, and the trial court’s findings are supported by the record. The furtive movements, combined with Ware’s driving, his suspicious actions after being stopped (locking the car after getting out, standing close to the door to block police access to the car, yelling at the officers that they could not search the car, and disobeying the officer’s order to move to the back of the car (¶17)), and the fact the pat-down discovered no weapons supported a reasonable suspicion a weapon might be hidden in the car. (¶¶11-19).

The court also rejects Ware’s claim his trial lawyer was ineffective for failing to object to trial testimony from one of the officers, who explained to the jury that Marques initially denied knowing anything about the gun, but police didn’t believe him, and that after additional questioning Marques “told the truth” (or, in the words of the prosecutor, “came clean”). (¶¶4, 7). This testimony didn’t violate State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984) ( “[n]o witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth”), as that case doesn’t prohibit an officer from testifying about what happened during his investigation and what he believed at the time of his investigation, State v. Johnson, 2004 WI 94, ¶14 n.2, 273 Wis. 2d 626, 681 N.W.2d 901.

¶27      The purpose and effect of [the officer’s testimony] was not to vouch for the veracity of Marques’ trial testimony. Marques had not yet even testified. Rather, the purpose and effect of this testimony was to allow Officer Burtch to explain how and why he conducted his interview of Marques, to tell the jury his thought process during the interview, and to explain what Burtch believed at that time. This is all permitted under Wisconsin case law. See State v. Snider, 2003 WI App 172, ¶27, 266 Wis. 2d 830, 668 N.W.2d 784 (a police detective’s testimony about what he believed at the time of his investigation did not improperly comment on whether the defendant’s or victim’s testimony at trial was truthful); State v. Smith, 170 Wis. 2d 701, 718, 490 N.W.2d 40 (Ct. App. 1992) (“[T]he detective’s testimony that [the witness] later changed his story to what the detective ‘felt was the truth’ was not an attempt to bolster [the witness’s] credibility, but was simply an explanation of the course of events during the interrogation.”).

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